The Tenth Circuit Court of Appeals and the Sixth Circuit Court of Appeals will soon consider whether the National Labor Relations Board (NLRB) has jurisdiction over tribal casino operations. In 2013, the NLRB issued two decisions—one with respect to the Chickasaw Nation’s WinStar World Casino and one with respect to the Saginaw Chippewa Indian Tribe’s Soaring Eagle Casino and Resort—in which it considered whether the NLRB had jurisdiction over casinos wholly owned by tribes. In both cases the NLRB asserted jurisdiction over the tribes after determining that the National Labor Relations Act (NLRA) applies to the commercial activities of tribes. In reaching its conclusion, the NLRB relied heavily on its earlier decision in San Manual Indian Bingo & Casino, 341 N.L.R.B. 1055 (2004), aff’d, 475 F.3d 1306 (D.C. Cir. 2007).
The tribes appealed the NLRB decisions to their respective federal appellate courts, arguing that the NLRA does not apply to their gaming operations because it is a federal law that does not expressly address its application to tribes, and because exclusion of tribes would be consistent with the NLRA’s general exclusion of government employers. The tribes both argue that the operation of their casinos is a governmental function, and that application of the NLRA to their casino operations would infringe upon the tribes’ ability to govern themselves and would negate their sovereign power of exclusion. Read the Chickasaw Nation’s opening brief and the Saginaw Chippewa Indian Tribe’s opening brief. Opening briefs, including several amici briefs from other tribes, Indian law scholars, and the National Congress of American Indians, were filed in the federal appellate courts in December. The NLRB’s response briefs are due in February in the Sixth Circuit and in March in the Tenth Circuit.
If the tribes’ appeals are unsuccessful, tribes (at least those within the jurisdictions of the Tenth Circuit and the Sixth Circuit) will need to ensure that they comply with the NLRA when conducting commercial activities such as operating a casino. The NLRA was enacted by Congress in 1935 to allow most private sector employees to organize into trade unions, engage in collective bargaining for better terms and conditions at work, and to take collective action, including strike, if necessary. The NLRA also defines a set of unfair labor practices, which are prohibited actions by employers, employees, and unions. In recent years the NLRB has actively enforced the provisions of the NLRA protecting concerted activities by employees, so tribes would need to ensure that their commercial activities comply with those provisions as well.